Mr Steaphan Paton v Department of Agriculture, Fisheries and Forestry

[2016] FWC 7966

[2016] FWC 7966

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Steaphan Paton
v
Department of Agriculture, Fisheries and Forestry
(U2016/11668)

DEPUTY PRESIDENT CLANCY MELBOURNE, 3 NOVEMBER 2016

Application for relief from unfair dismissal.

[1] On 21 September 2016, Mr Steaphan Paton made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Paton advised that he commenced employment with the Department of Agriculture, Fisheries and Forestry on 6 June 2016, was notified of his dismissal on 14 July 2016 and that this dismissal took effect on 1 August 2016.

[3] On 22 September 2016, the Fair Work Commission (the Commission) attempted to make telephone contact with Mr Paton. No answer was received and a voice message could not be left.

[4] On 23 September 2016, another attempt was made to telephone Mr Paton and a voice message was left requesting that he contact the Commission.

[5] Following two attempts to contact Mr Paton by telephone, a letter dated 23 September 2016 was sent to Mr Paton informing that on the basis of the information contained in his application, he had not served the minimum employment period required for an unfair dismissal application. This correspondence required Mr Paton to advise the Commission within 14 days whether he wished to proceed with his application.

[6] The Commission subsequently contacted Mr Paton by telephone. Mr Paton confirmed he had received this correspondence and was informed that his application was received outside of the 21 day period allowed for the lodging of unfair dismissal applications. It was suggested to Mr Paton that he may wish to get independent legal advice.

[7] On 4 October 2016, the Commission again telephoned Mr Paton. He subsequently sent an email acknowledging the minimum employment period requirements and requesting advice regarding the filing of applications.

[8] The Commission replied by email dated 4 October 2016, providing details of possible legal service providers.

[9] Mr Paton replied to this by return email asking for assistance in relation to whether he had filled in the correct form and inquiring as to the requirements for lodging a general protections application.

[10] On 5 October 2016, the Commission responded by providing information regarding general protections applications and details of a workplace advice clinic.

[11] On 11 October 2016, further correspondence was sent to Mr Paton providing a further 14 days for him to confirm whether he would be proceeding with his unfair dismissal application, failing which, his application would be dismissed.

[12] To date, Mr Paton has not responded to that correspondence.

[13] Section 382 of the Act provides that a person is protected from unfair dismissal if they have completed a period of employment of at least the minimum employment period.

[14] Section 383 of the Act sets out the minimum employment period:

383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.

[15] In all the circumstances of this matter, I am satisfied Mr Paton has not completed the required minimum employment period and his application has no reasonable prospects of success.

[16] Section 587(1) of the Act provides:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

[17] Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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